January 18th, 2022  SOS Newsletter
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Photo taken by Doug Domedion 

Friends – Our December 29, 2021 newsletter shared concerns relating to the recommended decision by the Administrative Law Judges (ALJs) assigned to the Heritage Wind project. We also asked that you make calls and send emails stating your concerns about project. Thank you to those of you who took action because we believe it may have had an impact on the decision.


On January 13th, the Office of Renewable Energy Siting (ORES) sent out a press release stating the permit for HW had been issued. The release stated in part that “the Office's decision follows a detailed review and robust public participation process to ensure that the proposed facility meets or exceeds the requirements of Section 94-c of the Executive Law and its implementing regulations.” Needless to say, the State is putting the best possible spin on the permitting of the first industrial wind project to go through the 94-c process. Those of us who are carefully watching each step of this project are well aware of the limitations to public participation and other aspects involved with the new siting process.


What the release did not include is that the Executive Director of ORES, Houtan Moaveni, who has the ultimate authority in these decisions, did not agree with all portions of the ALJs’ decisions. Instead, he agreed with the US Fish & Wildlife Service, the American Bird Conservancy, Clear Skies Above Barre, and local birding organizations in that the six turbines closest to the Iroquois National Wildlife Refuge should be removed from the project because “turbines T1 through T6 poses a potential significant elevated risk of fatality to nighttime migrating birds flying into and out of the Iroquois complex.” He did offer the option for Apex to prove to the satisfaction of ORES that the removal of the six turbines would make the project not viable due to funding or other reasons. However, if this happens there would be an expanded monitoring and adaptive management program for all the turbines that would include radar studies, expanded monitoring and possible temporary shutdown of offending turbines if a certain number of birds are killed.


While this is a final decision regarding the project, there will be private meetings between State Agencies and Apex and “compliance filings” that will describe many still unsettled issues and these would be posted on the website (although often crucial data is redacted so the public cannot read it). We will continue to monitor the Heritage Wind project as it moves through the 94c process and keep you up to date.


The 41-page decision from Executive Director Moaveni can be found here and some excerpts of interest follow. (Italics have been added for emphasis)


"Based on my review of the weight of the credible record evidence, I disagree with the recommended decision’s conclusion that applicant carried its burden of proof on this issue. To the contrary, I conclude that the weight of record evidence supports a finding that the location of the turbines T1 through T6 poses a potential significant elevated risk of fatality to nighttime migrating birds flying into and out of the Iroquois complex." (page 23)


"Given the alignment of the six turbines and the direction of migration, this evidence supports the potential for large numbers of migrating birds flying through the rotor swept zones of the project’s turbine field, particularly at night when visibility is poor." (page 24)


"In sum, the weight of record evidence supports the conclusion that applicant failed to satisfy its burden of proof, by a preponderance of evidence, that siting turbines T1 through T6 as proposed will avoid, minimize, or mitigate to the maximum extent practicable potential adverse environmental impacts to wildlife using the Iroquois complex, considering the significance of the Iroquois complex, how nighttime migratory birds use the Iroquois complex as an important stopover in their migration, their direction and altitude of travel, and the height of the proposed turbines."


"The record further supports the conclusion that removing or relocating turbines T1 through T6 from locations within two miles of the Oak Orchard WMA would fully avoid the potential adverse environmental impacts to wildlife using the Iroquois complex. Applicant argued, and the recommended decision agreed, however, that use of a two-mile setback from the Iroquois complex would be unprecedented in New York. Applicant also argued, and the recommended decision also agreed, that the potential reduction of the project by 33.6 MW per year due to the removal of the six turbines is inconsistent with the goals of the CLCPA. The project, however, is an unprecedented proposal to site a facility with one of the tallest land-based wind turbines adjacent to one of the most significant wildlife refuges in North America and in the flight path of one of North America’s most significant migratory pathways, without necessary site- or project-specific studies demonstrating that such siting would avoid, minimize, or mitigate to the maximum extent practicable potential environmental impacts to nighttime migratory avian species using the Iroquois complex. While it is true that Executive Law § 94-c requires the Office to consider the CLCPA targets and the environmental benefits of the proposed facility in its permitting decision, the Office is also tasked with protecting the environment and considering all pertinent social, economic, and environmental factors in the decision to permit a major renewable energy facility. Accordingly, requiring appropriate avoidance measures to protect a significant natural resource such as the Iroquois complex as well as the migratory avian species using the complex is consistent with the law and policy." (page 29)


"Accordingly, the draft siting permit is modified to provide applicant the option to demonstrate in the compliance phase that the removal or relocation of any or all of the six turbines would be impracticable. If applicant makes the showing to Office staff’s satisfaction, applicant shall in consultation with Office staff, NYSDEC, and USFWS finalize and file as a compliance filing an expanded post-construction monitoring plan and adaptive management program for the facility consistent with NYSDEC and USFWS guidelines, as discussed further below." (page 33)


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